AMAR CHAND SUHAG Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner has sought a writ in the nature of mandamus directing the respondents to grant the disability pension of the rank of JCO from the due date along with arrears of pension with interest by virtue of this petition filed under Article 226 of the Constitution. The petitioner has also sought the quashing of letters dated 21.5.1999 (Annexure P-3) and 19.1.2001 (Annexure P-5) decreasing his disability pension and rejecting the claim of enhancement of disability pension.

(2.) Brief facts, relevant for the decision of this case are that the petitioner had joined as a recruit/ Sepoy on 7.1.1951 being medically fit at the time of admission to military service. He got six to seven promotions after September 1956 and was medically down graded in July 1977 while he was working as Sub. Major (Junior Commissioned Officer). Despite the fact that he was in the substantial rank of Sub. Major in July 1977, he was granted the disability element of pension in rank of Sepoy. Before 1992, the respondents had granted the disability pension to the petitioner at the rate of 135/- per month without D.A. on the said disability pension, therefore, the petitioner filed a representation on 24.9.1993 (Annexure P-1) for enhancement of disability pension to Rs. 550/- per month. The respondents started giving him the disability pension of Rs. 165/- w.e.f. 1992 as allowed by CCDA (P) Allahabad vide PPO No. E/RA/3497/93. The petitioner filed a number of representations from 1993 to 1998 to grant him D.A. on the disability pension and ultimately a detailed representation was submitted by him on 4.3.1999 (Annexure P-2). The respondents, instead of increasing the disability pension of the petitioner, decreased it from Rs. 165/- to Rs. 135/- per month w.e.f. 9.7.1992 to 20.12.2002 and ordered for the recovery of the over payment Vide order dated 21.5.1999 (Annexure P-3). The petitioner filed a number of representations and also served a legal notice dated 21.11.2000 (Annexure P-4) against the above said prejudicial order. In response to the legal notice the following impugned order dated 10.1.2001 (Annexure P-5 ) was passed. Refer to your legal notice dated 21 Nov. 2000. JC-22306 Ex. Sub Major Hony Lt. Amar Chand Suhag was enrolled in the Army (ASC) on 2 Jan 51 and transferred to Corps of Engineers w.e.f. 22 Oct. 56. He was discharged from service on completion of terms of engagement w.e.f. 14 Fe. 78 in low medical category BEE (P) due to disease Bronchial Asthma which was initially detected in Sep. 56, while serving in ASC in the rank of Sepoy. The above named Ex.JCO was granted disability element @ 30% w.e.f. 14 Feb. 78 to 14 Sep. 79 at the rate as applicable to an OR as the onset date of disease was Sept 56 when he was an OR. Later on he has undergone Re-Survey medical Board and was further granted disability element at the same percentage/rates w.e.f. 15 Sep. 79 to 08 July 92. Thereafter he was again brought before Re-Survey medical Board and PCDA (P) Allahabad erroneously granted him disability element at the rates as applicable to JCO w.e.f. 09 Jul 92 to 20 Nov 2002 vide their PP No. D/RA/3497/1993. Accordingly the matter was referred to PCDA(P) Allahabad to issue Corr PPO to equalise the rate of disability element. PCDA (P) Allahabad corrected the rates of disability element from JCO to OR vide their PPO No. D/RA/3602/98/99. As the date of onset of disease viz. Bronchial Asthma is Sep 56 when he was a Sepoy, he is entitled for the disability element was admissible to OR and not of the rank of JCO. Sd/- S.K. Sharma, Major Senior Record Officers for OIC Record.

(3.) The validity of the impugned order dated 19.1.2001 (Annexure P-5) is the subject matter for adjudication, in this writ petition. The petition has been contested by taking shelter of Regulation 179 of the Pension Regulations for the Army 1961 (for short 'the Regulations') to contend that on the day of onset of "BRONCHIAL ASTHMA" suffered by the petitioner in September 1956, he was a Sepoy. On the aforesaid basis it is claimed that the petitioner is not entitled for the disability element as admissible to the rank of JCO. Regulation 179 of the Regulations which is relied upon by respondents reads as follows: Disability at the time of retirement/discharge 179. An individual retired/discharged on completion of tenure or on completion of service limits or on completion of terms of engagement or on attaining the age of 50 years (irrespective of their period of engagement), if found suffering from a dis attributable to or aggravated by military service and recorded by Service Medical Authorities, shall be deemed to have been invalided out of service and shall be granted disability pension from the date of retirement, if the accepted degree of disability is 20 per cent or more and service element if the degree of disability is less than 20 per cent. The service pension/service gratuity, if already sanctioned and paid shall be adjusted against the disability pension/service element, as the case may be. (2) The disability element referred to in Clause (1) above shall be assessed on the accepted degree of disablement at the time of retirement/discharge on the basis of the rank held on the date on which the wound/injury was sustained or in the case of disease on the date of first removal from duty on account of that disease.